Land and Environment Court New South Wales Medium Neutral Citation: Lavecky v Waverley Council [2021] NSWLEC 1115 Hearing dates: Conciliation conference on 15 February 2021; final agreement filed 15 February 2021 Date of orders: 9 March 2021 Decision date: 09 March 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away in the agreed amount of $30,000 within 28 days of these orders. (2) The appeal is upheld. (3) Consent is granted to development application DA-88/2019 for the demolition of 2 detached dwellings and the construction of a three-storey residential flat building with basement parking and 6 units at 18-20 Allens Parade, Bondi Junction NSW, subject to the conditions of consent at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – residential flat building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land 1998 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2012 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Amanda Lavecky (Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/309022 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-88/2019 (DA). The DA sought consent for the demolition of all existing structures, and the construction of a new, three-storey residential flat building above one level of basement car parking at 18-20 Allens Parade, Bondi Junction (the site) by Waverley Council (the Respondent). 2. The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 February 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 4. Leave was granted by the Court on 1 December 2020 and again on 11 February 2021 for the Applicant to amend the development application and to rely on amended plans. The final amended plans formed the subject of the conciliation conference. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to the proposal subject to conditions. 6. Whilst the final amended proposal remains largely consistent with the original development application, a series of amendments cumulatively resolve the contentions raised by the Respondent, which related primarily to site planning, building separation and setbacks, streetscape, built form and scale, and landscape amongst other contentions. 7. In summary, the agreed amendments have the effect of improving the siting of the proposal and enhance its relationship to the immediate context, improving amenity, solar access and privacy benefiting both the subject site and its immediate neighbours. Agreed conditions of consent further protect the amenity of the neighbour at 22 Allens Parade. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard the parties agree, and I am satisfied, the Waverley Local Environmental Plan 2012 (WLEP) is the relevant environmental planning instrument. The site is zoned R3 Medium Density Residential, and the final amended proposal, characterised as a residential flat building, is permissible with consent. 11. I am satisfied the final amended proposal meets the R3 zone objectives set out at cl 2.3(2) of the WLEP because it contributes to the provision of housing diversity within a medium density residential environment, and because the final amended proposed reduces the proposed quantum of on-site car parking partly to promote alternative modes of transport. 12. The amended proposal is consistent with all relevant development standards set out within the WLEP, specifically the maximum height of building and maximum floor space ratio. 13. The parties agree, and I am satisfied, the final amended proposal does not involve subdivision pursuant to cl 4.1 of the WLEP. 14. The final amended proposal is not situated on land identified on the Acid Sulfate Soils Map for the purposes of cl 6.1 of the WLEP, and similarly is not situated on land identified on the Flood Planning Map for the purposes of cl 6.3, nor situated on land shown on the Key Sites Map for the purposes of cll 6.8 or 6.9. 15. Clause 6.2(3) of the WLEP - Earthworks - sets out matters to be considered prior to any grant of consent. The parties and their experts agree, and I am satisfied, the Applicant's geotechnical assessment, stormwater management report, stormwater drainage service drawings and structural feasibility report serve to demonstrate that the effect of the final amended proposal upon the existing and likely future amenity of adjoining properties has been satisfactorily resolved. A condition of consent has been imposed to ensure excavated material and any imported fill material meet the objectives of cl 6.2(3)(e). 16. Clause 5.10 of the WLEP - Heritage conservation - sets out matters to be considered prior to any grant of consent. The site is situated within the Botany Street Conservation Area and is adjacent to a number of listed items identified in the Heritage Map and in Schedule 5 of WLEP. The parties and their experts agree, and I am satisfied, the Applicant's heritage impact assessment and demolition report, prepared by Zoltan Kovacs dated February 2019, demonstrates cl 5.10(4) has been satisfactorily considered and resolved in the final amended proposal. 17. I am satisfied State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes not typically associated with activities that might result in contamination of the land. As such, I am satisfied cl 7 of SEPP 55 has been satisfactorily addressed. 18. The parties agree, and I am satisfied, a BASIX Certificate, dated 16 November 2020 has been submitted in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The BASIX Certificate does not require further amendment given the minor nature of the final amendments. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 19. A Design Verification Statement, prepared by Antoniades Architects and dated 19 November 2020 has been provided in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development. I am satisfied the Design Verification Statement does not require further amendment given the minor nature of the final amendments. 20. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent, and in considering and responding to submissions from objectors, the final amended proposal is in the public interest. 21. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away in the agreed amount of $30,000 within 28 days of these orders. 2. The appeal is upheld. 3. Consent is granted to development application DA-88/2019 for the demolition of 2 detached dwellings and the construction of a three-storey residential flat building with basement parking and 6 units at 18-20 Allens Parade, Bondi Junction NSW, subject to the conditions of consent at Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (291327, pdf) Plans (14591336, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2021